The non-legally capable or dependent foundation: an overview of its development history and the current dispute about its legal classification
A non-legally capable or dependent foundation is a foundation that lacks a legal personality and requires a so-called foundation executor who administers the assets transferred to him by the founder for the purpose determined by the founder. Before the 19th century, all phenomena that today would be qualified as foundations (e.g. certain pia corpora, hospitals, or monasteries), but which were only gradually designated as such from the late Middle Ages onwards, were necessarily non-legal foundations. A concept of the legal foundation as a legal entity was still unknown. In the 19th century, many German law faculties were involved in the cases of the Städel Art Institute and the Blum Orphanage. In the course of these cases and based on the works of Mühlenbruch, Heise and von Savigny, the view gradually prevailed that the foundation was the second form of legal entity besides the corporation and could be established for purposes that went beyond religious and charitable ones, but that this legal personality could not be based solely on private disposition but required state approval. From all this, however, the conclusion was not drawn that foundations may always and only be established in the guise of a legal person. Rather, the legal form of foundations without legal capacity has survived the legal introduction of §§ 80-88 German Civil Code (BGB), and their number in Germany exceeds the number of foundations with legal capacity by a factor of five. To date, however, the legal classification of non-legal foundations has still not been fully clarified, in particular whether they can be qualified as a trust foundation or by means of a donation subject to conditions (donatio sub modo).
Prof. Dr. Stefan J. Geibel is Director of the Institute for German and European Corporate and Commercial Law at the Ruprecht-Karls-Universität Heidelberg. Here he holds the chair for civil law and ancillary areas, in particular foundation law with its European and international references. His research focuses include general civil law, company and corporate law, as well as foundation, association and non-profit law.
Prof. Dr. Stefan Geibel completed his doctorate in Tübingen in 2002 and habilitated there in 2006. He also earned the title Maître en droit at the University of Aix-Marseille.